Montana Tariff Litigants Defend Bid for Injunction With Recent SCOTUS Ruling, 9th Cir. Precedent
Counsel for four members of the Blackfeet Nation tribe challenging certain tariff action taken by President Donald Trump said the Supreme Court's recent decision in AARP v. Trump supports its interlocutory appeal of a Montana district court's decision to transfer the case to the Court of International Trade (Susan Webber v. U.S. Dep't of Homeland Sec., 9th Cir. # 25-2717).
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In a separate filing, the Blackfeet Nation members supported their motion for a preliminary injunction against the International Emergency Economic Powers Act and Section 232 tariffs on Canada while the appellate court hears the appeal on the transfer order.
In AARP, the high court addressed an appellate court's jurisdiction to review interlocutory orders that have the practical effect of refusing an injunction. Specifically, the Supreme Court vacated an appellate court's decision to dismiss an appeal for lack of jurisdiction and deny an injunction as premature.
The Blackfeet Nation members appealed the Montana court's decision to transfer the case to the U.S. Court of Appeals for the 9th Circuit and filed for an injunction against certain tariff action pending the appeal (see 2505140051). The members argued that "AARP is clear authority that the Ninth Circuit has authority and jurisdiction to address all the preliminary injunction factors submitted by the Appellants in their request for injunctive relief pending appeal."
In its defense of the injunction motion, the tribe members argued that tariffs can’t be imposed on two customs ports of entry, one in Piegan/Carway and the other in Del Bonita, that lie entirely within their lands and “connect the Blackfeet people to the Blackfeet Confederacy north of the 49th parallel that is historically one nation.”
They said they could show they were likely to succeed in preventing the transfer, justifying a preliminary injunction.
Despite the government’s claim otherwise, “clear precedent” shows the district’s transfer order is reviewable by the 9th Circuit, they said. The court has said that “in a case involving the lack of subject matter jurisdiction, this court has concluded that a section 1631 transfer order was immediately appealable,” they said.
The Court of International Trade doesn’t have authority over the case, they said. The Constitution differentiates between the power to regulate commerce between the states, from foreign nations, and with Native American tribes, they said, and CIT has only been granted power to hear cases involving matters of international trade.
Further, they said, the transfer was meant to be initiated under 28 U.S.C. 1581(i)(1)(B) -- which only allows CIT jurisdiction for nonrevenue tariffs. But many statements by the president himself indicate these tariffs are, in fact, meant to raise revenue, they said.
With CIT lacking jurisdiction, “The Plaintiffs will be here now, or later,” they said.
The tariffs also will cause irreparable harm to “family ranches and businesses” that “are more than just money -- they are a way of life,” they said.
And the balance of equities weighs in their favor, they said.
“The President’s stated goal, in his own words, is to get rich,” the tribe members said. “That’s not an interest that outweighs the Plaintiff’s interests in operating their businesses and communities under the rule of law.”